Fayze (Migration)

[2024] AATA 2988

Fayze (Migration) [2024] AATA 2988 (14 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Tarek Fayze

VISA APPLICANTS:  Mrs Layla Fayze
Mr Taha Lebde
Mr Mohamad Lebde
Mr Tarek Lebde
Mr Yahya Lebde

REPRESENTATIVE:  Mrs Mladen Ozdemir (MARN: 1573815)

CASE NUMBER:  2013499

HOME AFFAIRS REFERENCE(S):          OSF2016/073690 OSF2017/008004

MEMBER:Peter Emmerton

DATE:14 August 2024

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

Statement made on 14 August 2024 at 12:47pm

CATCHWORDS

MIGRATION – Other Family (Migrant) (Class BO) visa – Subclass 116 (Carer) – carer of the Australian relative – visa applicant declared to be the sponsor’s brother – greater dependence on the primary visa applicant than the sponsor – mother as the family head – source of funds – continued living in rented accommodation – decision under review affirmed    

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 116.211, 116.212, 116.221; rr 1.03, 1.12, 1.15

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 23 June 2020 to refuse to grant the visa applicants Other Family (Migrant) (Class BO) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 10 November 2017. At that time, Class BO contained three subclasses, Subclass 114 (Aged Dependent Relative); Subclass 115 (Remaining Relative) and Subclass 116 (Carer): item 1123A of Schedule 1 to the Migration Regulations 1994 (Cth) (the Regulations). In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 116 visa. The criteria for a Subclass 116 visa are set out in Part 116 of Schedule 2 to the Regulations. Relevantly to this matter, the primary criteria to be met include cl 116.221.

3. The delegate refused to grant the visas on the basis that cl 116.221 was not met because they were not satisfied the applicant met the definition of ‘carer’ at regulation 1.15AA(1)(b) at time of decision and subsequently does not meet the requirements of clause 116.221 in Schedule 2 of the Regulations.

4. The review applicant appeared before the Tribunal on 14 August 2024 to give evidence and present arguments. This review had been rescheduled from 24 July 2024 to allow additional time for evidence to be obtained and presented to the Tribunal. The Tribunal also received oral evidence from the visa applicant Ms Layla Fayze and Mrs Wadah Saffour.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.

6. The review applicant was represented in relation to the review.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the requirements of cl 116.221 are met.

9. The Tribunal has read and carefully considered all the evidence presented to the Department and the delegate.

10. The Tribunal has read and carefully considered the following evidence presented to the Administrative Appeals Tribunal, (AAT).

    ·Medical Certificate re. Mrs Wadah Saffour- 10 July 2024

    ·Form 80- Layla Fayze-29 June 2024

    ·Overseas Police Check

    ·Support letter by Layle Fayze- 08 July 2024

    ·Form 80-Taha Lebde- 29 June 2024

    ·Support letter from future employer- 07 September 2017

    ·Form 80- Mohamad Lebde- 29 June 2024

    ·Form 80- Yahya Lebde- 29 June 2024

    ·Dr Abdullah Wassouf notes-27 October 2014

    ·Physiotherapy report- 05 December 2022

    ·Western Wellbeing Clinic Report- 05 December 2022

    ·Statutory Declaration by Jacqueline Swindom- 03 July 2024

    ·Statutory Declaration by Olmina Miles- 09 July 2024

    ·Support letter by Jacqueline Swindon- 04 April 2020

    ·Support letter by David Faiman from Merri Health Counselling and Support Service- 27 March 2020

    ·Support letter by Madina Tola from Merri Health- 07 September 2017

    ·Letter by Dr Jagadeesh Herur-17 April 2024

    Whether the visa applicant is a ‘carer’

11. Clause 116.221 requires that at the time of decision, the visa applicant is a carer of the Australian relative (or ‘resident’). The term ‘carer' is defined in reg 1.15AA of the Regulations, which is set out in the attachment to this Decision.

    Applicant is a relative of the resident – reg 1.15AA(1)(a)

12. Regulation 1.15AA(1)(a) requires the applicant is a ‘relative’ of the resident who is the Australian relative (within the meaning of reg 1.03 i.e. a ‘close relative’ or other specified relation). In the present case, the Australian relative is identified as the visa applicant’s brother in the Form 40 sponsorship form. The Tribunal notes it was declared in the 470F application form, that the applicant’s relative in Australia requiring care was her mother, Ms Waddah Saffour who is an Australian citizen.

13. It is further noted that the Tribunal was contacted on 25 July 2021 and the following was stated by the representative. ‘The sponsor has instructed that his mother who is Australian citizen and requires care will like to be the sponsor for the applicants. Does she fill in the form 40 sp and provide it to the Tribunal or does she hand it in to Home Affairs? There was a misunderstanding in the initial application where the sponsor was supposed to be the mother who requires care. Tarik was supposed to be an assurance of support.’ The Tribunal observes this occurred substantially after the delegate’s decision dated 23 June 2020.

    The Tribunal answered the enquiry via email on 26 July 2021. ‘In relation to the below, please direct this correspondence to the Department of Home Affairs.

    To liaise with the Department of Home Affairs on telephone number: 131 881 or visit their website on

14. Clause 116.211 requires a visa applicant to claim, at the time of lodgement of their application, that they are the carer of an Australian relative.

15. The Tribunal has considered whether Ms SAFFOUR should be considered to be the ‘Australian relative’ for the purposes of clause 116.211. However, as the sponsor for this application is the applicant’s brother Mr FAYZE, the applicant would not meet the requirements of clause 116.212, which requires the applicant to be sponsored by the Australian relative mentioned in clause 116.211 or the spouse or de facto partner of that person.

16. Based upon the information in the forms at the time of application and the supporting documents plus the email dated 25 July 2021 sent to the Tribunal acknowledging the fact that Mr Tarek Fayze was not intended to be the sponsor, the Tribunal has determined Mr Fayze is taken to be the ‘Australian relative’ referred to in clause 116.212.

17. Clause 116.221 requires that, at the time of decision, the applicant is the carer of a person referred to in clause 116.211.

18. Therefore, as the visa applicant is the sister of the Australian relative, the visa applicant is not a ‘relative’ of the resident within the meaning of reg 1.03 and does not meet the requirements of reg 1.15AA(1)(a).

    Certification – reg 1.15AA(1)(b)

19. Clause 116.221 also requires an applicant to meet the definition of ‘Carer’ at regulation 1.15AA at time of decision on their application. The Tribunal finds Mr Tarek Fayze is the ‘Australian relative’ for the purposes of Clause116.211. It subsequently must find he is ‘the resident’ referred to within the definition of ‘Carer’ at regulation 1.15AA.

20. The person with the medical condition for the purposes of this application is Ms Wadah Saffour. The Carer Visa Assessment Certificate provided with the application clearly shows this to be the case. Therefore, as the person with the medical condition is not ‘the resident’, it must be demonstrated that Ms Saffour is a ‘member of the family unit’ of Mr Fayze for the requirements of regulation 1.15AA (1) (b) to be met.

21. Therefore, it must be demonstrated that Ms Saffour is the spouse or de facto partner of the family head (Mr Fayze) or is a child or step‑child of Mr Fayze or Mr Fayze’s spouse or de facto partner; or is a dependent child of a child or step‑child of Mr Fayze or Mr FAYZE’s spouse or de facto partner. This is not the case, Ms Wadah Saffour is identified as the mother. A range of documents demonstrate this including a copy of the family register document provided and testimony throughout the hearing.

22. As the Tribunal finds Ms Saffour does not meet the definition of ‘member of the family unit’ prescribed in regulation 1.12 (2). as well as the established fact the person with the medical condition is neither the resident, nor a member of the family unit of the resident, the applicant does not meet the requirements of regulation 1.15AA (1) (b) within the definition of ‘Carer’.

23. Therefore, the applicant cannot meet the definition of ‘carer’ at regulation 1.15AA at time of decision on this application and she does not meet the requirements of clause 116.221 in Schedule 2 of the Regulations.

24. The Tribunal was aware of the challenges both medical and physical facing Ms Saffour when she gave evidence. It is again noted this is a family doing all they can to support their ailing widowed, Australian Citizen mother, normally residing in Australia, who is in her latter years. The Tribunal observed her son has devoted himself to her relentless care as a result of her substantial dependency coupled with her mental state following some medical events. It was revealed during the hearing that Ms Saffour does not receive external support because of her challenging mental state which makes it unsafe for carers to assist in her home.  It further notes Mr Fayze’s mother is currently visiting her daughter, (his sister) in Lebanon to facilitate her brother’s clearly needed respite.

25. The Tribunal has substantial sympathy for the plight facing this family at a difficult time when it is clearly indicated they are motivated to care for an aging mother in her declining years. It would appear entirely logical when assessing the evidence, to assume that a simple administrative error occurred at the time of application. This process was initially undertaken without the assistance of a representative. The Tribunal notes the complexity associated with this process if not familiar with what is required. That said the Tribunal has no choice but to rule on the decision before it. The Tribunal has encouraged the representative to apply for Ministerial Intervention. The Tribunal declined a request to do so on their behalf as the issue does not reach the high bar for such a submission and the decision to intervene in this case is the right of the Minister. This was discussed during the hearing. 

26. For the reasons above, the visa applicant does not meet the criteria for a Subclass 116 visa. In respect of the other visa subclasses there is no material which would permit a finding that the applicant meets prescribed criteria for the visa sought.

    DECISION

27. The Tribunal affirms the decisions not to grant the visa applicants Other Family (Migrant) (Class BO) visas.

    Peter Emmerton
    Member

    
    

    ATTACHMENT

    Migration Regulations 1994

    1.15AA Carer

    1.15AA (1)An applicant for a visa is a carer of a person who is an Australian citizen usually resident in Australia, an Australian permanent resident or an eligible New Zealand citizen (the resident) if:

    (a)the applicant is a relative of the resident; and

    (b)according to a certificate that meets the requirements of subregulation (2):

    (i)a person (being the resident or a member of the family unit of the resident) has a medical condition; and

    (ii)the medical condition is causing physical, intellectual or sensory impairment of the ability of that person to attend to the practical aspects of daily life; and

    (iii)the impairment has, under the Impairment Tables (within the meaning of subsection 23(1) of the Social Security Act 1991), the rating that is specified in the certificate; and

    (iv)because of the medical condition, the person has, and will continue for at least 2 years to have, a need for direct assistance in attending to the practical aspects of daily life; and

    (ba)the person mentioned in subparagraph (b)(i) is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; and

    (c)the rating mentioned in subparagraph (b)(iii) is equal to, or exceeds, the impairment rating specified in a legislative instrument made by the Minister for this paragraph; and

    (d)if the person to whom the certificate relates is not the resident, the resident has a permanent or long-term need for assistance in providing the direct assistance mentioned in subparagraph (b)(iv); and

    (e)the assistance cannot reasonably be:

    (i)provided by any other relative of the resident, being a relative who is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen; or

    (ii)obtained from welfare, hospital, nursing or community services in Australia; and

    (f)the applicant is willing and able to provide to the resident substantial and continuing assistance of the kind needed under subparagraph (b)(iv) or paragraph (d), as the case requires.

    (2)A certificate meets the requirements of this subregulation if:

    (a)it is a certificate:

    (i)in relation to a medical assessment carried out on behalf of a health service provider specified by the Minister in an instrument in writing; and

    (ii)signed by the medical adviser who carried it out; or

    (b)it is a certificate issued by a health service provider specified by the Minister in an instrument in writing in relation to a review of an opinion in a certificate mentioned in paragraph (a), that was carried out by the health services provider in accordance with its procedures.

    (3)The Minister is to take the opinion in a certificate that meets the requirements of subregulation (2) on a matter mentioned in paragraph (1)(b) to be correct for the purposes of deciding whether an applicant satisfies a criterion that the applicant is a carer.